Montana public records suit seeks communications over new law defining sex
A nonprofit law firm filed suit Tuesday against Gov. Greg Gianforte and Department of Public Health and Human Services Director Charlie Brereton, asking a judge to force their offices to turn over public documents the firm requested but were denied over assertions of executive and attorney-client privilege.
Upper Seven Law filed the lawsuit in Lewis and Clark County District Court. The Helena-based firm also sued Gianforte and the state last week on behalf of a group of transgender, two-spirit, intersex and nonbinary Montanans who are challenging the state’s newly passed law narrowing the definition of sex.
The suit filed Tuesday ties in with the challenge to Senate Bill 458, which defines sex as a binary in state law, because it involves records attorneys for the firm requested in preparation for the suit challenging the new law.
“In Montana, the days of policymaking in the dark and behind closed doors are long gone,” Upper Seven Law Executive Director Rylee Sommers-Flanagan said in a statement.
According to the complaint, Sommers-Flanagan asked the Governor’s Office on Aug. 25 for correspondence to or from Gianforte’s General Counsel Anita Milanovich that referenced Senate Bill 458 or SF-424 between Aug. 1 and Aug. 5. She made a similar request to DPHHS, but also asked for any internal guidance sent around by the department’s chief counsel regarding the forms or the new law.
The state is required to fill out the SF-424 form when applying for federal grants. Some departments require applicants to attest they will follow numerous federal laws and standards, including anti-discrimination laws.
According to the new lawsuit, the law firm believes Milanovich “instructed Montana agencies to refuse to assure compliance with federal nondiscrimination law” when completing the forms, citing SB 458 – which Republican lawmakers passed, and Gianforte signed, this session and defines Montanans’ sexes only as “male” or “female.”
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The firm argues that since there was no active litigation involving SB 458 at the time the documents were requested, they should not be subject to any privilege, and that they should be subject to the state constitution’s right for the public to “examine documents or to observe the deliberations of all public bodies or agencies of the state government.”
The law firm says since neither the Governor’s Office nor DPHHS has provided any redacted documents or privilege logs, there is no way it can determine whether they fall under attorney-client privilege or whether they are being withheld “on the basis of the rejected and inapplicable executive privilege doctrine,” as the suit says.
“The Governor’s and the Department’s failures to comply with their constitutional obligations have forced Plaintiff to file this lawsuit to vindicate its constitutional rights,” the attorneys wrote in the lawsuit.
They are asking a judge to order the governor and DPHHS to produce the documents and for attorney’s fees and costs.